What is an Expungement?

by Professor Byron L. Warnken on May 13, 2010

Ten years ago, hardly anyone knew what expungement was – even most attorneys.  Now many non-lawyers and lawyers know something about expungement, but usually just enough to be dangerous.  Why did no one know about, or care about, expungement a number of years ago, and why does everyone now know about it and care about it?  The answer is that a person’s involvement with the criminal justice system is now online, and most people want to get such publicity away from public view.

Expungement is a legal fiction.  It allows an individual who has involvement with the criminal justice system to erase that involvement if it did not result in a criminal conviction.  If a person does have a criminal conviction, such conviction “sticks” for life, unless the conviction is overturned on appeal, vacated through a post conviction proceeding, or pardoned by the Governor.

Let’s assume that neither you nor I have a criminal conviction, and we are both applying for the same job or seeking the same apartment.  Let’s assume that your “non-criminal” record is completely clean, but my “non-criminal” record is not clean.  Let’s say that I have an arrest and a criminal charge, which resulted in a nol pros, a stet, or a probation before judgment (PBJ).  The good news for me is that I, like you, have no criminal record.  The bad news for me is that if anyone sees this information, you – and not I – will most likely get the job or get the apartment.

Ten years ago, it would have taken a lot of work on the part of a potential employer or potential landlord to differentiate between you and me in the example in the previous paragraph.  Now, the ability to differentiate is just a click away on the Maryland Judiciary Case Search.  People acquiring that information probably do not know a criminal record from a non-criminal record, but, in any event, they do not like what they see about me.  They will almost certainly hire you over me because they believe – and probably rightly so – that I am a much greater risk.

From my private practice, I know that many individuals want expungement.  The first step is to determine whether the client is entitled to expungement.  If so, there is a three-step process, as follows:  (1) file a petition for expungement with the appropriate court; (2) monitor the court system until you receive an order of expungement from the court (or pester the court until the order is received); and (3) monitor the police agencies and court systems, awaiting confirmation of expungement compliance (or pester them until the statement of compliance arrives).  Under the “fiction” that is expungement, the criminal event that did not result in a criminal conviction never happened.  Thus, if a person is arrested and not charged; or charged and granted a PBJ; or charged, tried, and acquitted, the involvement with the criminal justice system never happened.  Thus, if the person with the expungement is asked, on a job or apartment application (or even on the Maryland bar application), the legal answer is “no,” even though the actual answer is “yes.”

What I also know from my private practice, and apparently not enough criminal defense attorneys know, are the consequences of representing a lawful alien in a criminal case.  I am not talking about illegal aliens.  I am talking about someone who is not a United States citizen, but who is lawfully present in this country, e.g., on a green card.  Virtually every criminal defense attorney and virtually every judge knows that a PBJ is not a criminal conviction.  For that reason, criminal defense attorneys are delighted when they can “work out” a PBJ.  Often, however, they do not know that a PBJ under state law counts as a criminal conviction for purposes of federal immigration law.  Thus, the green card holder, for whom counsel “worked out” a PBJ, may have negative immigration consequences and may be deported.  If not deported, that person may be “excluded” and not permitted back into the country if they travel abroad.  If not excluded, that person may be denied United States citizenship.  We often have to seek relief through a writ of error coram nobis when the person pleaded guilty on incorrect legal advice.

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